On sedition: Sarim Naved

In this guest post, SARIM NAVED gives a chronological account of sedition in Indian law, and discusses the procedural aspects laid down for a magistrate to take cognisance of sedition

After the 1857 revolt, the Press Act of 1857 which prohibited all publications, without licensing, was passed. This Act known as Lord Canning’s Act applied to all kinds of publication, including books in all languages and other printed papers in all languages. 1860 saw the enactment of the Indian Penal Code, which remains in force today in a relatively unchanged manner. The Indian Penal Code, while not directly dealing with the press, does incorporate provisions that impinge upon and regulate the activities of the press. The code dealt with issues ranging from offences against a person’s body or property to criminal breach of trust to offences like defamation and obscenity that directly concerned editors. In the words of Rajeev Dhavan, “It was a comprehensive code. Not all these provisions were directed against free speech but virtually all could be used against it.” Amendments were later introduced to bring in the offence of sedition in 1870, the offence of promoting enmity between classes in 1898, the offence of outraging religious feelings in 1928 and imputations or assertions prejudicial to national integration, which were added by the government of independent India in 1972.

The Press and Registration of Books Act, 1867, was passed to enable the government to regulate printing presses and newspapers by a system of registration and to preserve copies of books and other literature printed in India. The British incorporated provisions for compulsory registration of books in the Press and Registration of Books Act, 1867. As per the provisions of this Act which continues to be in force until this day, every book and newspaper printed in the country must first be registered with the government. The British Government appointed a controller whose job was to enter formal details of such publications in the register kept for the purpose. However, the controllers began to evince more interest in the substantive contents of the book.[1] This reached a stage where Controllers were eventually being called upon to depose in Courts where authors and publishers were being prosecuted under sedition laws.[2]

1878 saw the passing of the controversial Vernacular Press Act. Directed against newspapers publishing in Indian languages, the Act aimed specifically at the ‘seditious’ vernacular media. Criticism of British policies was being carried out by a number of new local newspapers and the administration of Lord Lytton passed this Act.[3] As per this Act, the vernacular press was forced to make deposits which could be forfeited at the discretion of the government.[4] The Act also included provisions for search and seizure, which were later incorporated into the Code of Criminal Procedure in 1898 after the repeal of the Vernacular Press Act.

In 1898, the Criminal Law Amendment Act not only amended the Indian Penal Code bringing in a stricter definition of sedition but also introduced the new offences of promotion of enmity between classes as well as the making or publishing of statements conducive to public mischief. The same year also saw the enactment of the Code of Criminal Procedure. The Code, although a general law governing procedural criminal law in India, did include provisions for search and seizure of offending, seditious and obscene materials and also empowered State Governments to order forfeiture of books that in its opinion contravened sections of the Indian Penal Code. This law is still in operation today.

The Press (Emergency) Powers Act, 1931 brought back the obligation to furnish a deposit or security at the discretion of the Executive. “The Act empowered a Provincial government to direct a printing press to deposit a security which was liable to be forfeited if the press published any matter which was” defined as a mischievous act under Section 4 of the Act. These ‘mischievous’ acts ranged from bringing the Government into hatred or contempt, inciting enmity between classes, or inciting a public servant to resign or neglect his duty. As the Madras High Court was to observe in 1951, while striking down certain provisions of this Act after independence, “When the Act was first promulgated in 1931 it was described as an Act to provide against publication of matter inciting to or encouraging murder or violence. The statement of objects and reasons indicated the same. It was stated therein :

“Experience has shown that propaganda in furtherance of subversive movements and of crimes of violence is carried on by newspapers, leaflets, pamphlets, bulletins and the like.”[5]

Powers under the Press (Emergency Powers) Act, were also used to proceed against a prominent magazine called Blitz. Blitz, in its issue dated January 20, 1945 had announced its intention of flouting, and indeed ignoring, the Official Secrets Act by openly asking members of the public to send it official secrets to allow it to publish such ‘secrets':

“INFORMATION PLEASE

Blitz‘s overall policy is to give its readers the fullest information on all topics-secret or otherwise-affecting them. As such, this paper is not bound by an antiquated convention which debars the press from releasing to the common people official secrets, confidential documents, leakages of such news as is sought to be suppressed from public knowledge. Such information is always most welcome; when brought to the editor, and will be paid for at lavish rates. Blitz has in the past paid as much as Rs. 1,000 and over for one such story….Editor”[6]

The British Government sought to impose a ‘forfeitable deposit’ of Rupees Three Thousand on Blitz, a considerable sum in those days. The magazine sought to argue that when it used the words ‘official secret’ it did not mean it in the sense that term ‘official secrets’ as defined under the Official Secrets Act or under ‘confidential information’ as construed under the Press (Emergency Powers) Act. This was, on the face of it, a rather facetious, if openly subversive argument considering that the call for information clearly specified that they wanted information on all topics- secret or otherwise. While Blitz did have an argument in law that confidential information in one law should not be given the same meaning as in another law, the Bombay High Court used its discretion to adopt the meaning of official secrets as in the Official Secrets Act, for the purposes of other laws as well. Revelatory of a mindset that has survived Independence and the transfer of power to Indians, the state’s right to define its security interests remains unchallenged. However, the trend was to see a reversal of sorts in the first few decisions that were given by Indian Courts after the coming into force of the constitution.

The Indian Press (Emeregency Powers) Act was again called into question. “The Indian Act was, in fact, an antiquated revival of the trial by Star Chamber of Press offences and the licensing system which English democracy had fought and suppressed. The very Preamble of the Act – “for the better control of the Press” – was offensive.” The High Court went on to strike down Section 4(1)(d) of the Act on the grounds that sedition had been deliberately not included as one of the grounds on which the law could reasonably restrict the freedom of speech and expression. Section 4(1)(d) allowed the government to order forfeiture of the printing press in default of non-payment of fine when if a publication was deemed to incite disaffection against the government. However, while accepting the argument regarding the unconstitutionality of that particular provision, the High Court did endorse pre-censorship by the executive, instead of a system where members of the press may be prosecuted should they commit any offence, through their writing, under the Penal Code. The argument raised before the Court was that there was no need for such conditions as payment of security or forfeiture of the press as if a member of the press committed any act amounting to incitement of an offence, they could easily be prosecuted under criminal law. Under this view of administration of the law, censorship at the discretion of the executive would be redundant as only judicial adjudication of guilt would matter. The High Court, however, rejected the argument stating that “But it is well known that in a majority of cases, criminal prosecution may not be the effective remedy. Instead of it, the more effective remedy usually adopted happens to be to impose a ban by an administrative order issued under the law, thereby preventing the keeper of the printing press or the publisher from indulging in such unlawful acts, which involve danger to the security of the State. Therefore, it is that censorship is resorted to in order to suppress facts or opinions that might undermine the existing order, or the authorities, or the State as such. “[7]

Provisions of the Indian Press (Emergency) Powers Act eventually came to be struck down in the case of Romesh Thappar v. State of Madras[8], where the Supreme Court ruled,

“We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.” [9]

This decision was followed by two High Court judgments, from Punjab and Madras, which struck down similar state laws. Sedition had been deliberately kept out from the scope of Article 19(2), as the Constituent Assembly had been vociferously opposed to inclusion of sedition as a ground for restricting free speech in India. While the members of the Constituent Assembly were undoubtedly principled people who were opposed to restrictions on enjoyment of fundamental rights, the single minded opposition to sedition was also fueled by the fact that a large number of the member ship of the Constituent Assembly had served time in prison for sedition against the British Government. Seth Govind Das, a member from the Central Provinces and Berar had this to say to state his opposition to the inclusion of sedition in Article 19(2)[10]: “In the course of my speech during the Satyagraha movement of 1930, I said that my great-grandfather got this waist-band for helping the alien government and that he had committed a sin by doing so and that I wanted to have engraved on it that the sin committed by my great-grandfather in helping to keep such a government in existence had been expiated by the great-grandson by seeking to uproot it. For this I was prosecuted under Section 124A and sentenced to two years’ rigorous imprisonment. I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment.”

The debate in the first decade of the Republic of India, as evidenced by the Court battles fought during that time remained between freedom of speech and maintenance of public order. Even the cases of Romesh Thappar and Brij Bhushan which struck down ‘anti-sedition’ censorship laws saw a dissenting judgment of Justice Fazal Ali who believed that threat to public order, and the desire to maintain public safety, justified the imposition of such governmental control over the press. Later battles were to be fought on issues of public morality and decency, although threat to public order was still the immediate symptom of such threats and have been used as an excuse for governmental action against many a publication.

Following these decisions, Article 19 (2) of the Constitution was amended with retrospective effect in 1950. The grounds under which Article 19(2) could protect a law restricting free speech were extended to all matters where public order, decency, morality or security of the state were concerned. Earlier, Article 19(2) had listed out offences such as libel and slander which could be used as grounds for restricting free speech, but with the introduction of these new general principles as bases for restriction the standard for justification of such restrictions became more vague. In a system where the constitutionality of a statute is presumed, these general principles have imposed a heavy burden for challenging the legality of such statutes.

The Criminal Law Amendment Act, 1961 was introduced in 1961. These amendments criminalised the act of questioning the territorial integrity of India if such questioning is prejudicial to the interests of the safety or security of India. In 1990, a further amendment was introduced which criminalised the act of publishing a map of India which is not in conformity with the map published by the Survey of India. The Act also empowered the State Governments by virtue of Section 4 to declare any newspaper or book as defined in the Press and Registration of Books Act, 1867 or any other “document wherever printed, to be forfeited to the Government if it appeared to the Government that the said book etc. questioned the territorial integrity or frontiers of India in a manner which was or was likely to be prejudicial to the interests of the safety or security of India.”In the most important case decide pursuant to this Act, the forfeiture of a middle school geography textbook was brought into question. The case eventually hinged on whether the State had shown enough justification to use its police powers in forfeiting the book. The notification according to which the book was forfeited stated the following as grounds for forfeiture, “These books contain maps of India, part of India, maps of countries adjacent to India and maps of Asia. All these maps involve the external boundary of India which has been found to be grossly incorrect. Besides this, the island territories of ‘Laccadive, Minicoy and Amindivi Islands’ which form an integral part of India are omitted together from every map of India. In some of the maps the territory of Bhutan has been omitted while in other Indo-Pakistan boundary is ignored.” The Supreme Court applied the test that the notification should provide clear reasons as grounds for forfeiture. Although unsaid in the judgment, the issue under contestation was the standard to be applied in forfeiture, which is an act that amounts to abridgement of the fundamental right of free speech. The Court’s ultimate conclusion was, “There is a considerable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State etc. In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion. Clearly the grounds must be distinguished from the opinion. Grounds of the opinion must mean the conclusion of facts on which the opinion is based. There can be no conclusion of fact which has no reference to or is not ex facie based on any fact.” In effect, this decision does not say that the grounds mentioned in the notification were insufficient to allow forfeiture, but proceeds on the thinking that no grounds have been provided at all by the State government. This is a rationale, a tightrope even, that has been repeatedly adopted by the Indian judiciary in striking down orders of forfeiture of books. While judgments have often steered clear of making statements against censorship, technical reasons have been utilised repeatedly to release works from orders suppressing them. This provision still exists on the statute books in addition to Section 95 of the Code of Criminal Procedure which authorises State Governments to forfeit books if in its opinion, the book or publication falls afoul of provisions regarding sedition, obscenity or promotes enmity between communities.

Short note regarding cognizance of sedition by a magistrate:

An additional safeguard has been included in the Code of Criminal Procedure regarding the institution of a criminal prosecution for sedition. Section 196 (1) of the CrPC states that the offence of sedition along with all other offences against the state enumerated under Chapter VI of the India Penal Code, cannot be taken cognizance of by any Court without prior sanction from the Central Government or a State Government. As the Delhi Police comes under the jurisdiction of the Union Home Ministry, I would think that the concerned authority for providing sanction for prosecution in this case would be the Central Government, which seems to have already opined that the comments made by Arundhati Roy and others at the meeting in Delhi. Section 196 is analogous to Section 197 of the Code which lays down the requirement of a mandatory sanction for prosecution of public servants. This additional safeguard before initiation for prosecution having been granted by statute, it cannot be ignored by any Court and if the Magistrate has taken cognizance of this case without sanction, such an action is in violation of Section 197 (1) and is untenable. Since the order is not available publicly, it is hard to say whether the magistrate has taken cognizance, as if the order is simply one of registering an FIR against the accused, sanction is not necessary. In essence, sanction is not necessary for investigation but is necessary for initiation of prosecution. So, if as it seems right now, the order from the magistrate is simply to file a status report by the police, that is correct but if as has been reported by the media, that prosecution of arundhati roy for sedition and other offences has indeed been ordered, such an order would be bad in law.

From Kamal Krishna Sircar v. Emperor[11], regarding a prosecution for sedition against a person who was propagating Bolshevism as a form of government for India,and seeking to recruit people to the cause, Justice Lort-Williams made a simple observation which may be a very useful guide to deciding the question of whether sedition has been committed or not: “The learned Magistrate, who tried the case, obviously takes a strong view with regard to Bolshevism. He does not like it; neither do I, nor do a very large number of sensible people. That does not mean that one may not make speeches of this kind. I do not like quite a lot of things the people do constantly from day to day. That is no reason for suggesting that those people are guilty of sedition or of attempting to bring the Government into hatred or contempt.”

As an addendum to my post earlier, have just got to see the order against Arundhati Roy & Co. The magistrate’s order is not that proceedings should begin against the speakers for sedition, but that an FIR should be registered against all those speaking at the conference, which is the correct position in law. The police do not have authority to refuse to file an FIR when a cognizable offence has prima facie been committed. What they should have done, and can still do, is to file a closure report that upon investigation it has been found that no offence has been committed. So as far as the media reports that prosecution has been ordered, that is not correct. Prosecution can begin only after the police file a charge-sheet, and regarding sedition such prosecution will then require sanction from the government to continue.
The police, by the way, have already opined that no mens rea exists to initiate prosecution against the speakers at the meeting although this opinion was not furnished to the Court on the date ordered by the Court and it seems unlikely that the police will reverse their position. They rarely do that.

Dear Mr Naved,
I am curious whether you are of the opinion that India’s sedition law should be repealed? Human Rights Watch has recently urged the government to do this stating that the law is being used to suppress free speech. I am writing an article about Arundhati Roy’s Kashmir speech and am curious about your opinion since you know a lot about the subject. Do email me directly at sapnashahani at gmail dot com. Thank you,
Sapna.